Disability discrimination: Pressure to work long hours can be a provision, criterion or practice

The Court of Appeal has upheld a decision that an employer's expectation that an employee would work long hours could amount to a provision, criterion or practice (PCP) which puts disabled persons at a substantial disadvantage compared to non-disabled persons.

In such cases, the employer's duty to make reasonable adjustments would be triggered. A failure to make such adjustments would give rise to a disability discrimination claim (United First Research Partners v Carreras).

Background law and facts

Although many employers offer flexible working initiatives, there may still be a long-hours culture or an expectation to work anti-social hours to accommodate global business requirements. This can create the risk of claims from employees with caring responsibilities who find that their career opportunities are curtailed because they seek to find work-life balance. It can also have an adverse impact on employees with mental or physical impairments which mean that they cannot work long hours, or suffer an exacerbation of their symptoms if they do so. In addition to discrimination complaints, there are health and safety issues to consider as recent studies have found that working long hours can have a detrimental impact on health.

The employer appealed that decision on three grounds. In this briefing, we examine the PCP appeal in which the employer argued that the EAT had departed from the case which they had to meet, i.e. was the employee required to work unsuitable hours?

Court of Appeal decision

The employer argued that the EAT had adopted too broad an approach by finding that a requirement could encompass an expectation to work late on a regular basis. In effect, the employer sought to restore the Employment Tribunal’s decision that "requirement" implied an element of compulsion (i.e. being forced to work those hours rather than merely expected to do so).

It was common ground that the employee had not been coerced into working long hours. His bonus was not linked to his working hours and there was no prospect of any redundancy exercise taking place at the relevant time.

The Court of Appeal considered his particulars of claim and noted that while it referred to a requirement, “the picture that it paints is of repeated “requests” which create a “pressure” to agree.” When the employee had returned to work after an accident, his employer had initially asked him if he would work late. However, over time, there was an assumption that he would work late on at least two evenings per week and the question was not whether he would work late but which days would he be working late.

The Court of Appeal noted that the key issue to be determined was the meaning of “requirement.” The Tribunal had found that it meant a lack of choice, but the Court of Appeal agreed with the EAT that it did not necessarily involve coercion or an explicit instruction. A pattern of repeated requests to work late made it clear that it was expected and that created a pressure to agree. This was capable of amounting to a PCP. The fact that the employee felt obliged to work those hours for commercial or financial reasons, did not change the position, although it could have an impact on other aspects of the reasonable adjustments claim (perhaps, the question of disadvantage) or quantum.

Comment

The Court of Appeal’s decision reaffirms the views expressed in our report on the EAT decision, namely that having a culture where working long hours is the norm creates the risk of claims from those with protected characteristics. In this case, the employer had made requests with which the employee felt obliged to agree. The question of whether the position would have been different if the employee had not been asked to work late but simply felt obliged to do so because that was the established working pattern within the office remains to be determined.